Equity Under English & Indian Law

You are currently viewing Equity Under English & Indian Law


Equity itself is derived from a Latin word which means Justice and egalitarianism. It’s a system of law which emanated in the English chancery and encompasses a formal body of indispensable and procedural rules and doctrine, that appendage or override common and statutory law. 

In India, Equity has its origin from the relevant ancient Hindu period, when some of the well-known legal experts defined the old law and set out the new rules for a better edible solution in case of any conflict arising between rules of different laws. Hindu law has never been undeviating and has accordingly introduced equitable principles to meet the requirements of the time. The smritis were the oldest attempt for the compilation of law. In which smriti karas (the author of Smriti) have actually conceded the principle of law.

Equity Under English Legal System 

To trace the development of Equity under English law, we will have to go back to the 13th century when Edward I was ruling over England. In those days there were three great courts in existence namely-

  • The King’s Bench;
  • The Court of Common Pleas; and
  • The Exchequer.

Of the above three Courts, the King’s Bench administered equity also but at the same time they did not regard themselves as administering a new body of rules. They were trying to provide relief in hard cases. Allen has observed that “Norman and English Kings were fountains of justice and the defenders of the poor and defenseless persons.” The law which these Courts administered was in part ‘Traditional Law’ and in part ‘Statutory Law’. The Statute law was also called ‘Common Law’.

In English Law we may distinguish between two meanings of “Equity”, the distinction having come about as the result of historical development. In the first place, the term may be taken to represent the general endeavor to make the law and its administration as just and as humane as possible. In its other meaning it denotes the doctrines evolved by the Court of Chancery in giving effect to the first and more general meaning. This must not be taken to imply that there never has been in the English system, outside the Court of Chancery, any manifestation of that general, tampering discretion exercised by the judiciary. 

Indeed, from the very earliest times down to the present era, we find instances of all three manifestations of equity, the liberal interpretation of the law, its relaxation in particular cases and the creation of new doctrines. Examples of liberal interpretation, solicited at random, are the presumptions of innocence in favor of the accused, the principles of natural justice, the rule that the Privy Council will entertain appeals from colonies to prevent injustice being done, and the statutory rule empowering the judges to refuse the extradition of fugitive offenders to other parts of the Commonwealth if it would be unjust or oppressive to do so.

The correction of the Common law by equity has been the subject of some dispute. Maitland insisted that, apart from a few trifling instances, there was no conflict between them. “Equity” had come, not to destroy the law, but to fulfill it. Every title of the law was to be obeyed, but when all this had been done, something might yet be needful, something that equity would require”

Roman and English Equity: Resemblance and Distinction

The Roman Equity, resembles the English Equity on the following points:

  • Basic authority is similar– Just as the authority of the English Equity was based on the “royal prerogative”, the authority of the Roman Equity was based on the imperium, a survival of the royal power to see justice done to the people which vested in Praetor during his period of office.
  • Common object– The object of both types of equity was the same, i.e., to reduce the rigors and deficiencies of the old law.
  • No repealing of old law–  Both left the old law unrepealed, rather supplemented the old law.
  • Based on analogy– Both were in certain matters founded on analogy to the old law.
  • Nature-  Both claimed to override the old law by virtue of an inherent superiority of principles of equity. 
  • Development & Origin– Both English and Roman Equity had similar origin and development. In both places it was evolved as a reaction against the rigidity and formalism of Common law. 

Distinction Between The Two

  • Administration– English Equity was administered by a different official and not by one who administered the common law. The result was that there was constant conflict between the Common Law Courts and the Court of Equity in England. Roman Equity was administered by the same official viz. The Praetor, who administered, both the civil law and Equity hence, the conflict at Rome between Equity and civil law was devoid of practical inconveniences.
  • Nature– English Equity was a judicial principle and in many cases exposed facts in nature. Roman Equity was in nature and form statutory law embodying general principles to meet defects which had become apparent in the past.
  • Subject– The subjects covered by the two also present a distinct contrast. Originally the main subject of English Equity was the development and enforcement of ‘trusts’. It devised equitable remedies like injunction and specific performance in case of breach of contract. Roman Equity did not at first recognize the binding nature of trust. On the other hand, the largest portion of Roman Equity dealt with ‘wills’ and ‘succession’, English Equity refused to deal with such matters.

Equity Under Indian Legal System

In India, there was never any separate Court for the administration of Equity. The greater part of the law to be applied by the Court, has been codified. But in the absence of specific law or usage in any matter, the Court has to act according to principles of ‘Equity’, ‘Justice’ and ‘Good Conscience’ interpreted to mean only those rules of English Equity which are applicable to Indian society and circumstances.

In Mohd. Idris v. R.J. Babuji, the Court held that undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders.

In Re: Vinay Chandra Mishra, the court held that statutory provisions cannot override the constitutional provisions and Article 142 (1) of Constitution of India is of such nature and provides powers to the court to supplement the existing legal framework to do complete justice in any matter. This power should be undefined and uncatalogued so that it remains elastic enough to be molded to suit the given situation.

Origin of Equity 

Hindu Law

In India, the origin of Equity can be traced back to the Hindu period when jurists explained the old laws and gave new rules of interpretation and equitable solutions in case of conflict between the rules of various laws. Hindu Law had never been static and has consequently introduced equitable principles to meet the exigencies of the times.

It has been laid down that in case of a conflict between the rules of “Smritis” either may be followed, as reasoning on the principles of equity. Yuktivichar shall decide the solutions.

Jayaswal has also collected authorities to the same effect. He says: “We may recall ‘Kautilya’s provision that in the dharma text is found opposed to judicial reason the dharma text fails and there the authority of reason prevails. Yajnavalkya…….says, “Where there is a conflict between two smritis texts. The texts had to give way to reason which were in fact, the principles of equity and to which they were named as “YuktiVichar“. This “Yukti Vichar” was necessarily the principles of equity which were based on justice and right. He limits the superiority of Reason or Equity to a conflict between the Sastras themselves.”

Muslim Law

In Mohammedan Law also the principles of Equity are clearly noticeable. Abu Hanifa, the founder of the Hanafi Sect of Sunnis, expounded the principle that the rule of law based on analogy could be set aside at the option of the judge on a liberal construction or judicial preference to meet the requirements of a particular case. These principles of Mohammedan Law are known as ‘Istihsan’ or ‘Juristic Equity’. With regard to the Mohammedan Law. 

Their Lordships of the Privy Council in Hamira Bibi v. Zubaida Bibi, observed as follows: “The chapter on the duties (Adab) of the Qazi in the principal Works on Mussalman Law clearly shows that the rules of Equity and equitable considerations commonly recognized in the Courts of Chancery in England, are not foreign to the Mussalman System, but are in fact often referred to as English Equity is not applicable in India to and invoked in the adjudication of cases. It may be noted that all the rules of English Equity are not applicable to India. 

Courts Under the East India Company

Regulation of 1827 required the East India Company Courts to act according to justice, equity and good conscience in the absence of a specific law and usage. Under Clause 36 of the Supreme Court Charter of 1823, the Supreme Court of Bombay was expressly made a Court of Equity, and given an equitable jurisdiction corresponding to that of the Court of Chancery. The provision of the rule of ‘justice’, ‘equity’ and ‘good conscience’ was expressly laid down nearly in all subsequent Acts for the guidance of Judges.

Thus, in India, the Courts were vested with the equitable jurisdiction also and would decide those cases for which there was a provision under the existing body of law according to the principles of ‘justice’, ‘equity’ and ‘good conscience’. 

Statutory Recognition Of Equity Law In India

Most of the equitable principles and rules have in India been embodied in the statute law and have been made applicable for the extent of the provision made therein. That, the provision of equity in Indian statute books might have their source in common law or in the equity or in adjustment between the two, is immaterial. Statutory recognition of the principle of equity is found in the:

Indian Contract Act (1872) – There are certain equitable doctrines which have been imported in the Indian Contract Act, and some of the important doctrines relating generally to the law of contract are the doctrines of penalties and forfeitures, stipulation as to time in a contract, equitable relief on the grounds of fraud, misrepresentation and undue influence. 

Specific Relief Act (1877) – The provisions of the Specific Relief Act regarding injunction, specific performance, cancellation, rectification, and recession, etc, recognize the principles of Equity to a large extent. Banerjee in his Tagore Law Lectures observes that “the Specific Relief Act is admittedly based on doctrines of equity jurisprudence which were originally developed in England. The guidance afforded by the decisions of the foreign Courts in interpreting and applying the provisions of the Indian Acts is therefore of peculiarly valuable character.”

The Indian Trust Act, (1882)– The rules contained in the Indian Trusts Act, 1882 are substantially the same which were administered at that time by English Courts of Equity under the name of ‘justice’, ‘equity’ and ‘good conscience’.

The Transfer of Property Act (1882) – The Transfer of Property Act has also included many doctrines of equity originated in the Courts of Chancery in England. Apart from such doctrines Sections 48-51 of the present transfer of property act are based on the principles of equity. 


We have seen that in enacting many statutes, the Indian Legislature has substantially adopted the English rules of equity, but it must also be noted that all the rules of English Equity are not applicable in India. There are many rules of English Equity which have either not been followed in India or imported only in a modified form in view of the special circumstances of this country. 

The importance of equity was greater emphasis than the common law system. During the centuries it gained importance and became an integral part of an Indian legal system too. In India it developed through various statues which have gained momentum with the various acts which have been passed throughout